Christopher Awogbolade Awobotu V. The State (1976)

LawGlobal-Hub Lead Judgment Report

O. OBASEKI, Ag. J.S.C.

This appeal is against the judgement of Dosumu, J., delivered on the 30th day of August 1974, in Charge No. LA/9c/74 in which he found the Appellant guilty on 17 of the 19 counts in the information (i.e. counts 1,3,5,6,7,8,9,10,11,12,13,14,15,16,17,18,and 29) charging the Accused with the offences of forgery, uttering and obtaining various sums of money by false pretences. Aggrieved by this conviction the Appellant brought this appeal to this court. Four grounds of appeal were originally given in the Notice of Appeal, but before hearing of this appeal (by leave of this court), 6 new grounds were substituted. These are as follows:-

(1)  The whole trial is illegal and the conviction is accordingly null and void because there was no information filed by or on behalf of the Attorney-General as required by law.
IN THE ALTERNATIVE

(2)   The learned trial Judge erred in law and on the facts in convicting the Appellant in court.
PARTICULAR OF ERROR
(a)   The charge is bad for duplicity.
(b)  It was not established, as alleged in the charge that the Appellant stole the cheques” between the months of April 1971 and August 1971″.
(c)  Having found that the presumption under section 148(a) of the Evidence Act is inapplicable to the facts of this case, there remains no valid or rational grounds for the inference that the Appellant stole the cheques in questions.

(3)  The learned trial Judge misdirected himself in law and on the facts in convicting the Appellant on count 3.
PARTICULARS OF MISDIRECTION
(a)  The learned trial Judge asked himself the wrong question when he said:
“Can the Accused forge the signature of a fictitious persons as I have found G. Ola Coker to be”
(b)The fact that G. Ola Coker is a fictitious person is relevant only to the issue whether or not a document is a false document. Having found that the document (exhibit F5) was a false document, the only relevant question (as to which the learned trial Judge did not direct himself) was whether there was proof of any of the intents required by section 465 of the Criminal Code.
(c) The learned trial Judge ought to have directed himself that the use of a false name only constituted a forgery if, in all the circumstances of the case (including the acquittal of the Appellant on counts 2 and 4) identity was an immaterial factor and/or the Appellant purported to be game specific other persons real or fictitious.

(4)  The learned trial Judge erred in law and on the facts in convicting the Appellant in counts 5, 8, 11, 14 and 17 of the information.
PARTICULARS OF ERROR
(d) it was not established beyond reasonable doubts that the pretence laid in each count was the effective cause of the National Bank of Nigeria Limited parting with the amount of money stated in such count.
(e) There was no proof whatsoever that the Appellant made any pretence concerning the owner of Account No. 8010.

(5) The learned trial Judge erred in law and on the facts in convicting the Appellant on counts 6,7,9,10,12,13,15,16 and 18.
PARTICULARS OF ERROR
(a) The offence alleged in the Particulars of Offence on each count was that the Appellant forged and uttered (as the case may be) a cheque “purporting to have been signed by the owner of Account No. 8010 with the National Bank of Nigeria Limited, Yakubu gowon Street Branch, Lagos.
(b)   None of the cheque alleged to have been forged purported to have been made by”the owner of account No. 8010 aforesaid”. The decision of the learned trial Judge is unreasonable and cannot be supported having regard to the evidence.

(6) The decision of the learned trial Judge is unreasonable and cannot be supported having regard to the evidence.
As the validity of the information and the conviction on all the 17 counts have been seriously challenged. We are setting out the information in full hereunder before proceeding with this judgement. It reads:

IN THE HIGH COURT OF LAGOS STATE IN THE LAGOS JUDICIAL DIVISION
Charge No. LA/9c/74
The State v. Christopher Awogbolade Awobotu (m)
The day of  1974
At the sessions holden at Lagos, on the day of 1974, the Court is informed by the Director of Public Prosecutions and behalf of the State that: Christopher Awogbolade Awobotu (m) is charged with the following offences:-

Statement of Offence – 1st Count
Stealing, contrary to section 390 of the Criminal Code.
Particulars of Offence
Christopher Awogbola Awobotu (m), between the months of April 1971, and August 1971, at Lagos Judicial Division, stole the following National Bank cheques
(a) No. LB-K068939;
(b)  No. LB-K068950;
(c) No. LB-K060883;
(d) No. LB-K060884.
(e) No. LB-E098074; and
(f)  No. LB-P155903:
total value 12k, property of National Bank of Nigeria Limited.

Statement of Offence – 2nd Count
Inducing delivery of money by false pretence contrary to section 419 of the Criminal Code.
Particulars of Offence
Christipher Awogbolade Awobotu (m), on or about the 25th day of August 1971, at Lagos, in the Lagos Judicial Division with intent to defraud, induced National Bank of Nigeria Limited, to deliver to the Nigerian Office Equipment Industries Limited, a sum of $78,000 now N156,000.00 to wit: by crediting the account of the said Company with the said sum of N156,000.00 by false pretences, to wit: by falsely pretending that the owner of account No. 90080 with the said National Bank of Nigeria, Yakubu Gowon Street Branch, Lagos authorised that the accounts of Nigerian Office Equipment Industries Limited be credited with the said sum of N156,000.00.

Statement of Offence – 3rd Count
Forgery, contrary to section 467(2)(g) of the Criminal Code.
Particulars of Offence
Christopher Awogbolade Awobotu (m), on or about the 25th day of August 1971, at Lagos, in the Lagos Judicial Division, forged a Bill of Exhange to wit:  National Bank of Nigerian cheque No. LB-E068939 dated 25th August 1971, for the sum of 78,000pounds now N156,000.00 purporting same to have been signed by one G. Ola Coker.

Statement of Offence – 4th Count
Uttering a false document, contrary to section 468 of the Criminal Code.
Particulars of Offence
Christopher Awogbolade Awobotu (m), on or about the 25th day of August 1971, at Lagos, in the Lagos Judicial Division knowingly and fraudulently uttered a false document to wit: National Bank of Nigeria cheque No. LB-3068939 dated 25th August, 1971, for the sum of N156,000 purporting same to have been signed by one G. Ola Coker.
Statement of Offence 5th Count
Obtaining money by false pretences contrary to section 419 of the Criminal Code.
Particulars of Offences
Christopher Awogbolade Awobotu (m), on or about the 6th day of April, at Lagos, in the Lagos Judicial Division, with intent to defraud, obtained from National Bank of Nigeria Limited, a sum of $3,050 now N6,100.00 by false pretences, to wit: by falsely pretending that the owner of account No.6010 with the said National Bank of Nigeria, Yakubu Gowon Street, Lagos, had authorised that the said sum of N6,100.00 be paid from the said account number 8010. (underlining is ours)

Statement of Offence – 6th Count
Forgery, contrary to section 467(2)(g) of the Criminal Code.
Particulars of Offence
Christopher Awogbolade Awobotu (m), on or about the 6th day of April 1972, at Lagos, in the Lagos Judicial Division, forged a Bill of Exchange to wit; National Bank of Nigeria cheque No. LB-K068950 dated 6th April 1972, for the sum of 3,050pounds now N6,100.00 purporting same to have been signed by the owner of Accounting No, 8010 with the said National Bank of Nigeria Limited, Yakubu Gowon Street Branch, Lagos.

Statement of Offence – 7th Count
Uttering a false document contrary to section 468 of the Criminal Code.
Particulars of Offence
Christipher Awogbolade Awobotu (m), on or about the 6th day of April 1971, at Lagos, in the Lagos Judicial Division, knowingly and fraudulently uttered a false document to wit: National Bank of Nigeria cheque No. LB-K068950 dated 6th April 1972, for the sum of 3,050pounds now 6,100.00pounds purporting same to have been signed by the owner of Account No. 8010 with the said National Bank of Nigeria Limited, Yakubu Gowon Street Branch, Lagos. (Underlining is ours).

Statement of Offence- 8th Count
Obtaining money by false pretences contrary to section 419 of the Criminal Code.
Particulars of Offence
Christopher Awogbolade Awobotu (m), on or about the 9th day of June 1972, at Lagos, in the Lagos Judicial Division, with intent to defraud, obtaining from National Bank of Nigeria Limited, Yakubu Gowon Street Branch, Lagos, a sum of 500pounds now N1,000.00 by false pretences to wit: by falsely pretending that the owner of Account No. 8010 with the said National Bank of Nigeria, Yakubu Gowon Street Branch, Lagos, had authorised that the said sum of 500pounds now N1,000.00 be paid from the said accounts No. 8010.

Statement of Offence – 9rd Count
Forgery, contrary to section 467 (2) (g) of the Criminal Code.
Particulars of Offence
Christopher Awogbolade Awobotu (m), on or about the 9th day of June 1972, at Lagos, in the Lagos Judicial Division, forged a Bill of Exchange to wit: National Bank of Nigeria cheque No. LB-K060883 dated 9th June 1972, for the sum of 500pounds now N1,000.00 purporting same to have been signed by the owner of Account No. 8010 with the said National Bank of Nigeria Limited, Yakubu Gowon Street Branch, Lagos.

Statement of Offence – 10th Count
Uttering a false document contrary to section 468 of the Criminal Code.
Particulars of Offence
Christopher Awogbolade Awobotu (m), on or about the 9th day of June 1972, at Lagos, in the Lagos Judicial Division, knowingly and fraudulently uttered a false document to wit: National Bank of Nigeria cheque No. LB-K060883 dated 9th June 1972, for the sum 500pounds, now N1,000.00 purporting same to have been signed by the owner of account No. 8010 with the said National Bank of Nigeria Limited. Yakubu Gowon Street Branch, Lagos.

Statement of Offence – 11th Count
Obtaining money by false pretences contrary to section 419 of thee Criminal Code.
Particulars of Offence
Christopher Awogbolade Awobotu (m), on or about the 13th day of June 1972, at Lagos, in the Lagos Judicial Division, with intent to defraud, obtained from National Bank of Nigeria Limited, a sum of 762pounds now N1,524.00 by false pretences, to wit: by falsely pretending that the owner of Account No. 8010 with the said National Bank of Nigeria, Yakubu Gown Street Branch, Lagos, had authorised that the said sum of 762pounds now N1,524.00 be paid from the said Account No. 8010.

Statement of Offence – 12th Count
Forgery, contrary to section 467 (2) (g) of the Criminal code.
Particulars of Offence
Christopher Awogbolade Awobotu (m), on or about the 15th day of June 1972, at Lagos, in the Lagos Judicial Division, forged a Bill of Exchange to wit: National Bank of Nigeria cheque No. LB-K060884 dated 15th June 1972, for the sum of 762pounds now N1,524.00 purporting same to have been signed by the owner of Account No. 0810 with the said National Bank of Nigeria Limited, Yakubu Gowon Street Branch, Lagos.

Statement of Offence – 13th Count
Uttering a false document contrary to section 468 of the Criminal Code.
Particulars of Offence
Christopher Awogbolade Awobotu (m), on or about the 15th day of June 1972, at Lagos, in the Lagos Judicial Division, knowingly and fraudulently uttered a false document to wit: National Bank of Nigeria cheque No LB-K060884 dated 15th June 1972, for the sum of 762pounds now N1,524.00 purporting same to have been signed by the owner of Account No. 8010 with the said National Bank of Nigeria Limited, Yakubu Gowon Street Branch, Lagos.

Statement of Offence – 14th Count
Obtaining money by false pretence contrary to section 419 of the Criminal Code.
Particulars of Offece
Christopher Awogbolade Awobotu (m), on or about the 18th day of August 1972, at Lagos, in the Lagos Judicial Division, with intent to defraud, obtained from National Bank of Nigeria Limited, a sum of 4,000pounds now N8,000.00 by falsely pretences, to wit: by falsely pretending that the owner of Account No. 8010 with the said National Bank of Nigeria Limited, Marina Branch, Lagos, had authorised that the said sum of 4,000pounds now N8,000.00 be paid from the said Account No. 8010. .

Statement of Offence- 15th Count
Forgery contrary to section 467(2)(g) of the Criminal Code.
Particulars of offence
Christopher Awogbolade Awobotu (m), on or about the 18th  day of august 1972, at Lagos, in the Lagos Judicial Division, forged a Bill of Exchange to wit: National Bank of Nigeria cheque No. LB-098074 dated 18th August 1972, for the sum of 4,000pounds now N8,000.00 purporting same to have been signed by the owner of account No. 8010 with the said National Bank of Nigeria Limited, Marina Branch, Lagos. .

Statement of Offence-16th Count
Uttering a false document contrary to section 468 of the Criminal Code.

Particulars of Offence
Christopher Awogbolade Awobotu (m), on or about the 18th day of August 1972, in the Lagos Judicial Division, knowingly and fraudulently uttered a false document to wit: National Bank of Nigeria cheque No. LB-E098074 dated 18th Augusty 1972, for the sum of 4,000pounds now N8,000.00 purporting same to have been signed by the owner of account No. 8010 with the said National Bank of Nigeria Limited, Marina Branch, Lagos.

Statement of Offence – 17th Count
Obtaining money by false pretences
contrary to section 419 of the Criminal Code.

Particulars of Offence
Christopher Awogbolade Awobotu (m), on or about the 14th day of Decemebr, 1972, at Lagos, in the Lagos Judicial Division, with intent to defraud, obtained from National Bank of Nigeria Limited a sum of 750pounds now N1,500.00 by false pretences to wit: by falsely pretending that the owner of account No. 8010 with the said National Bank, Marina Branch, Lagos, had authorised that the said sum of 750pounds now N1,500.00 be paid from the said account No. 8010. (Underlining is ours).

Statement of Offence – 18th Count
Forgery, contrary to section
467(2)(g) of the Criminal Code.
Particulars of Offence
Christopher Awogbolade Awobotu (m) on or about the 14th day of December 1972, at Lagos, in the Lagos Judicial Division, forged a Bill or Exchange to wit: National Bank of Nigeria cheque No. LB-P155903 dated 14th December 1972, for the sum of 750pounds now N1,500.00 purporting same to have been signed by the owner of Account No. 9010 wit the said National Bank of Nigeria, Marina Branch, Lagos. .

Statement of Offence- 19th Count
Uttering a false document contrary
to section 468 of the Criminal Code.

Particulars of Offence
Christopher Awogbolade Awobotu (m), on or about the 14th day of December 1972, at Lagos, in the Lagos Judicial Division, knowingly and fraudulently uttered a false document to wit: National Bank of Nigeria cheque No. LB-P155903 dated 14th December 1972, for the sum of $750 now N1,500.00 purporting same to have been signed by the owner of acount No. 8010 with the said National Bank of Nigeria Limited, Marina Branch, Lagos.

(A. Adetosoye)
Senior State Counsel, For Director of Public Prosecutions.
The arguments in support of each ground were presented with exceptional brilliance, eloquence and lucidity that one was tempted to forget that the facts were very much against the Appellant. We shall now proceed to examine the grounds in the order in which they appear above. But before we deal with the grounds, it will be helpful if we give a brief resume of the offences charged and the facts of the case.

The Appellant was on the 3rd day of June 1974 arraigned before Dosumu, J., on information containing 19 counts wherein the Appellant was charged:
(a)  In count 1, with the offence of stealing contrary to section 390 of the Criminal Code;
(b)  In counts 3, 6,9,12, 15 and 18 with the offence of forgery of various National Bank cheques contrary to section 467 (2) (g) of the Criminal Code;
(c)  In counts 4, 7, 10, 13, 16 and 19, with the offence of uttering various false documents to wit National Bank cheques contrary to section 469 of the Criminal Code; and
(d)   In counts 2, 5, 8, 11, 14 and 17, with the offence of obtaining various sums of money by false pretences contrary to section 419 of the Criminal Code.  It is of particular interest to observe that in count 2, the statement of offence did not use the wording obtaining money by false pretences. Instead it gave the statement describing the offence as inducing delivery of money by false pretences contrary to section 419 of the Criminal Code.  However, the Appellant was found not guilty on this count and was acquitted. He was also acquitted on count 4 which charged him with the offence of uttering the cheque by which delivery of the amount of money in count 2 was alleged to have been induced.

The opportunity for these offences arose when the Appellant was the Principal Accountant of the National Bank of Nigeria Limited, Marina Branch, Lagos.
He joined the service of the National Bank of Nigeria Limited in September 1970 and in April 1971, he was posted to the Marina Branch as the Branch Accountant.
Four months later i.e. on the 25th day of August 1971, he forged National Bank of Nigeria cheque No. LB-K068939 dated 25th August 1971 for 78,000.
He uttered the cheque and got the amount transferred to the account of his firm purporting same to be signed by G. Ola Coker.
On 6th April 192, he forged National Bank of Nigeria cheque No. LB-K068950 dated 6th April 1972 for 3,050pounds purporting same to be signed by the owner of Account No. 8010 with the National Bank of Nigeria Limited. He uttered the cheque and collected the amount from the Bank.
On 9th June 1972, he forged National Bank of Nigeria cheque No. LB-K060883 dated 9th June 1972 for 500pounds purporting same to have been signed by owner of Account No. 8010 with the National Bank of Nigeria Limited.  He uttered the cheque and collected the amount from the Bank.
On the 15th day of June 1972, he forged National Bank of Nigeria cheque No. LB-K060884 dated 15th June 1972 for 762 purporting the same to have been signed by the owner of account No. 8010 with the said National Bank of Nigeria Limited.  He uttered the cheque and collected the amount from the Bank.On the 18th day of August 1972, he forged National Bank of Nigeria cheque No. LB-K098074 dated 18th August 1972, for the sum of 4,000pounds purporting the same to have been signed by the owner of Account No. 8010 with the said National Bank of Nigeria Limited.  He uttered the cheque and collected the amount from the Bank.

Finally, on the 14th day of December 1972, he forged National Bank of Nigeria Limited cheque No. LB-P155903 dated 14th December 1972, for the sum of 750pounds purporting the same to have been signed by the owner of Account No. 8010 with the said National Bank of Nigeria Limited. He uttered the cheque and collected the amount stated therein from the Bank. The learned trial Judge thereof found that he organised a system of fraud and operated it from April 1971 to December 1972, by issuing false cheques for various amounts to deceive and defraud the National Bank of Nigeria  Limited.
G. Ola Coker, registered as owner of Account No. 90080 with the Bank was a fictitious person apparently registered by the Appellant in the Index Register of Customers exhibnit D, to facilitate the execution of the fraud. Account No. 8010 was opened by Daudu Salawu, P.W. 4, a building contractor, residing at Abijan, at the material time. He drew no cheque on the account till December 1973, but made about 11 payments amounting to about 25,000pounds. He gave evidence and denied the signature in cheque exhibits F, F1, F2, F3 and F4 drawn on his account and made payable cash to self or order.

Mrs. Ebunola Olufunmilaro Sule, P.W. 21, opened her Account No. 04166 with the Marina Branch, in March 1972, and she was supplied with a cheque book, exhibit 00 and a teller, exhibit 001. A month later, she wrote to the Bank to transfer her account to Ilupeju branch, and it was transferred. By this time, she had already exhausted the cheque book. She denied being supplied with cheque book containing cheques 098065 to 098085 on 5th April 1972, as shown in exhibit NM1. As at 5th April 1972, she still had four unused cheque leaves in her book.

From the evidence of Mr. Lateef Agoro (Chshier No. 1) (P.W. 18) Daudu Salawu (P.W. 4), Mrs. E.O. Sule (P.W. 21) and Patrick Nwamanwa, Assistant Superintendent of Police, Handwriting Analyst and Photographer (P.W. 22), the learned trial Judge found that the Appellant wrote the 5 cheques F, F1, F2, F3 and F4 and passed them to P.W. 18 for payment and was paid. He also found that Appellant wrote out exhibit F5 and F6 as well. Thus the findings on exhibits F, F1, F2, F3 and F4 disposed of 15 counts in the information. With regard to exhibit F5, the learned trial Judge found only the offence of forgery proved as required by law.  The offences of uttering the cheque, exhibit F5 and inducing delivery by falsely pretending that the owner of Account No. 90080 with the said National Bank of Nigeria Limited, Yakubu Gowon Street Branch, Lagos, authorised that the account of Nigerian Office Equipment Industries Limited be credited with the said sum of N156,000.00 were held unproved. When the activities of the Appellant surfaced and was brought to the knowledge of Samson Olatunde Banjo, P.W.1, who was the Director of Banking Operations and Acting General Manager of the National Bank of Nigeria Limited, at the time, he contacted the Accused and informed him of the information at his disposal. The Accused admitted the fraud on the bank and promised to make restoration.

The cheque leaves with which the fraud was perpetuated were never issued to customers, but came into the possession of the Accused by virtue to his position of office. Subsequently, the matter came before the Police, and prosecution was instituted against the Accused for the offences charged in the information. The Accused was arraigned before Dosumu, J., on the 3rd day of June 1974, when he pleaded to the counts in the information. His plea of not Guilty joined issue with the prosecution on all the counts. The prosecution called 27 witnesses and closed its case. The defence decided not to lead any evidence and called no witness but rested its case on the evidence adduced by the prosecution. The learned trial Judge, after hearing Counsels address from both sides, reviewed the evidence, and gave a considered judgement wherein the convicted the Accused on all but 2 of the counts. Having stated the facts of the case, we shall now deal with the arguments advanced in support of the grounds of appeal. Chief F.R.A. Williams, learned Counsel for the Appellant, arguing in support of ground 1, submitted that the provision of section 337 of the Criminal Procedure Law Cap 32 Vol. II Laws of the Lagos State of Nigeria which prescribed the form any information to be filed in the High Court shall take has not been followed. The said section 337 of the Criminal Procedure Law reads:

“Every information shall bear the date of the day when the same is signed and with such modifications as shall be necessary to adapt it to the circumstances of such case may commence in the following form:

The State v. C. D. ………..
In the High Court of Lagos State
The ………….. Judicial Division
The …………. day of………………19…….
At the sessions holden at ………………..
On the …………………. day of …………19……… …
The Court…………….. By the Attorney General on behalf of the State that C. D. is charged with the following offences or offences………….

He further submitted that it was mandatory that the form be used in view of the fact that it is only in the Attorney General that has power to initiate criminal proceedings in any Court of Law has been vested by the Constitution of the Lagos State (Interim Provisions) Decree 1968 No. 13 1968.  He also observed that the information was not even signed by the Director of Public Prosecutions and submitted that it is improper for a State Counsel to sign for the Director of Public Prosecutions. The learned Counsel then treated us to the historical development of the term “Law Officer “in Nigeria legislation from the colonial era to the present day and finally conceded that the definition of the term Law Officer includes State Counsel. He however submitted that the Senior State Counsel was incompetent to sign the information filed in this matter as the information was laid and  filed by the Director of Public prosecutions. We wish to observe the Senior State Counsel in this case signed “on behalf of the Director of Public Prosecutions.” This does not make any difference according to Counsel for the Appellant.

We find ourselves unable to agree with the submission of the learned Counsel for the Appellant as section 341 of the Criminal Procedure Law makes it abundantly clear as to the class of officers who may sign the information.
It reads:
(1) “All information shall, subject to the provisions of subsection (2) and section 342 be signed by a law officer.

(2) Where the State Commission shall for reasons of public convenience think fit, an information may be signed by any other public officer or person whom the State Commission may designate.”

The term Law Officer in section 2 of the Criminal Procedure Law is defined as bearing the meaning assigned thereto in the Criminal Code.
In section 1 of the Criminal Code Cap 31, it is defined as follows:-
“Law Officer in respect of the Lagos State means the Attorney General and the Solicitor General of the State and includes the Director of Public Prosecutions and such other qualified officer by whatever names designated to whom any of the powers of a Law Officer are delegated by law or necessary intendment.”

Dealing with the question whether a Senior State Counsel comes within the term “Law Officer”, the  learned Counsel for the Appellant at a stage conceded that he comes within the definition, but later withdrew the concession. He however, conceded that the Director of Public Prosecutions is a Law Officer. It is apparent from the definition given above that the Director of Public Prosecutions comes within the definition.

We are of the view that the definition of Law Officer in the Criminal Code is wide enough to include Senior State Counsel and State Counsel of all grades. The office of the Director of Public Prosecutions is an office in the Ministry of Justice of Lagos State by virtue of section 8(1) of the Lagos State (Interim Provisions) Decree 1968. State Counsel is similarly an officer in the Ministry of Justice of the Lagos State, although of an inferior status to that of the Director of Public Prosecutions. The incumbent of both offices must be legally qualified and are charged with legal duties under the Attorney-General.

By virtue of section 8(3) of the Lagos State (Interim Provisions) Decree 1968 which reads:
“The powers of the Attorney-General of Lagos State or that of the Legal Secretary thereof, as the case may be, under subsection (2) of this section may be exercised by him in person and through the  Director of Public Prosecutions of the state acting under and in accordance with the general or specific instructions of the Attorney-General or of the Legal Secretary, as the case may be, and through the officers of the Ministry of Justice of that State, acting under and in accordance with such instruction.”
The Director of Public Prosecutions and the Senior State Counsel become officers to whom powers of the  Attorney-General (who come within the definition of a Law Officer) are delegated by law or  necessary intendment and by virtue of section 8(6) which provides that:
“Except at the instance of the Attorney-General of Lagos State or the Legal Secretary thereof, as the case may require, the question whether he was given any instruction in pursuance of this section or what the instructions were shall not be enquired into by any Court of Law.”

It is to be presumed by the Court in the absence of any objection by the Attorney-General that both the Director of Public Prosecution and the State Counsel were acting in accordance with the instruction of  the Attorney-General in filing this information.
The learned Counsel for the Appellant cited for the assistance of the Court, three authorities which are:
(1) Onwuka v The State (1970) 1 All NR15;
(2)  Attorney General W/R v African Press Limited and another (1965) 1 All NLR; and
(3) Rex v Aiyeola 12 WACA 324.
They were cited in support of the proposition of law that where there is no competence to file information, the trial on that information is a nullity. We are in agreement with the learned Counsel that that statement represents the true state of the law.  But in the most recent case ” Onwukas case, this Court set our clearly the law in respect of the Lagos Stage, and there is in this case more in support of the respondent than the Appellant in his argument on the competence of the Director of Public Prosecutions to file information.
In the case of Onwuka v The State (1970) 1 All N.L.R 159 which came before the full Court, the Supreme Court examined in detail the provisions of various subsections of section 8 of the Lagos State (Interim Provisions) Decree (No. 13 of 1968) and the competence of the Director of Public Prosecutions to institute criminal proceedings.  Coker, J.S.C., (delivering the judgement of the Court) said at page 166:

“There is only one qualification to the competence of the Attorney-General of Lagos State.  He is empowered to institute such criminal proceedings in any Court of Law in the State.  “The Criminal Code  operates in Lagos State now a State law, hence the  Attorney-General of Lagos State is competent to institute such proceedings in respect of offences against the Criminal Code as such and by virtue of  section 8(3) of Decree No. 13 of 1968, the Director of Public Prosecutions of the State is competent in the circumstances to institute such criminal proceedings including the present one.” .
In the earlier case of Attorney-General Western Nigeria v The African Press Limited and Ayo Ojewunmi (1965) 1 All N. L. R. 9, Ademola, C.J., (delivering the  judgement of the Court) after giving the historical origin of   section 47 of the 1963 Constitution of Western Nigeria which is almost in pari materia to section 8(3) of the Lagos State (Interim Provision) Decree 1968 (No. 13 of 1968) said at page 11, letters D and E:-
“Since section 47 of the Constitution authorises the Attorney-General to exercise his constitutional powers in person or through the Director of Public Prosecutions or other officers, a prosecution instituted by the Director of Public Prosecutions ranks in law as if it had been instituted by the Attorney-General personally and no further evidence of consent is necessary.”
and in letters G to H, he continued as follows:-

“Generally, there is no need for a Judge to know what instructions the Attorney-General as given to the Director of Public Prosecutions in regard to the conduct of a case and the Courts do normally take it for granted that if the Director of Public Prosecutions begins a prosecution under section 47 of the Criminal Code, he has done so in accordance with the instructions given him by the Attorney-General, for subsection (9) of section 47 of the constitution of Western Nigeria provides that –

“(9) Except at the instance of the Attorney-General of the Region, the question whether he has given instructions in pursuance of this section or what the instructions were, shall not be enquired into by any Court of Law”.

In the case of Rex v Johnson Jaiyesimi Aiyeola 12 WACA 324 cited before us, the West African Court of Appeal considered at length the definition and meaning of “Institution of  Prosecution”.
From the above three authorities, we find nothing to persuade us to the view that the information filed by the Director of Public Prosecutions in this case is invalid and or that the trial of the Appellant on  it was a nullity.
On the question of signature, it is settled law that where a statute or piece of legislature prescribes that a particular document shall only be signed by a particular officer, it is mandatory that only that officer and no other shall sign the document.  We have had the opportunity of reading the authorities namely:-
(1) Plymouth Corporation v Hurell (1968) 1QB 455;
(2) Graddage v Harringay LBC (1975) 1WLR 241 at 249;
(3) Prince Blucher Exparte Debtor (1931)2 Ch 70 at 72 -75; and
(4) London County Council v Agricultural Food Products Limited and Same v Vitamins Limited (1955) 2 QB 2-8- cited before us and find that they confirm the law.

The question of competence, whether a Senior State Counsel has authority to sign an information on behalf of the Director of Public Prosecutions therefore becomes irrelevant as the signature of a Law Officer on the information is sufficient compliance with the law. This first ground of appeal fails.
With regard to ground 2 which in (a) complains of duplicity in Count 1 in the charge it is conceded by the learned Acting Director of Public Prosecutions of Lagos State that the charge is bad for duplicity. We are in agreement with the submission of Chief F.R.A. Williams, the learned Counsel for the Appellant that the charge is bad for duplicity. This is apparent on the face of the cheques alleged stolen which bore varying dates.
As these cheques were not physically found in the possession of the Appellant at the dates of recovery but were presumed to have been in the possession of the Appellant on the dates appearing on them, the presumption that they were stolen on the same day cannot arise.
Cheque No. LB-K068939 bore the date 25/8/71
Cheque No. LB-K068950 bore the date 6/4/72
Cheque No. LB-K060883 bore the date 9/6/72
Cheque No. LB-K060884 bore the date 15/6/72
Cheque No. LB-E098074 bore the date 18/8/72
Cheque No. LB-P155903 bore the date 14/12/72

It is only in the evidence of Mrs. Sule that we find that cheque No. LB-K098074, i.e. exhibit F1 was removed long before the date if bore.  We are however, not in agreement with the Acting Director of Public Prosecutions that an acquittal on the counts should follow the successful submission on duplicity.
If this objection had been raised at the Court of trial, we are in no doubt that the information would have been amended. Further, we are unable to find that the conviction on this count has occasioned any miscarriage of justice. We only need to refer to the provision of section 168 of the Criminal Procedure Law Cap. 32, Vol, II, Laws of Lagos State which reads:-
“No judgement shall be stayed or reversed on the ground of any objection which if stated after the charge was read over to the Appellant or during the progress of the trial might have been amended by the Court.”

We also refer to two decided cases namely:-
(1)Okeke v Commissioner of Police 12 WACA 363;
(2)R v Patrick Osakwe 12 WACA 366 where the West African Court of Appeal, while upholding the ground, dismissed the appeal on the ground that there was no miscarriage of justice as the objection was not raised in the Court below.
With regard to grounds 3. 4 and 5 which deal with the offences of forgery uttering and obtaining by false pretences, it will be helpful to keep in mind the presumptions that arise when a cheque is drawn. What are the presumptions
In the case of R v Page (1971) 55 Cr App R 1971 2 All ER 870, Phillimore, C.J., (delivering the judgement of the Court of Appeal in England) said at p. 874;

“What is the law in regard to a cheque It is set out very conveniently and very clearly in Kenny on the Outlines of Criminal Law 19th Edition 1966 p. 356 para. 346 I am indepted to Geoffrey Lane, J., for its  assistance.
It is put like this-
Similarly, the familiar act of drawing a cheque (a document which on the face of it is only a command of a future act) has held to imply at least three things:-

(1) That the drawer has an account with that Bank;
(2) That he has authority to draw on it for that amount;
(3) That the cheque as drawn is valid order for the payment of that amount (that is that the present state of affairs is such that in the advancing course of events, the cheque will on its future  presentation be duly honoured.-

The learned Counsel for the Appellant in arguing ground 3 submitted that the necessary intents to constitute forgery under section 467 (2) (q) of the Criminal Code was not proved in relation to exhibit F5 the cheque for 78,000.00pounds. He submitted that since the Appellant was acquitted on counts 2 and 4 as there was no sufficient evidence to prove the offence of inducing the Bank to pay the amount of 78,00pounds by false pretences and the offence of uttering, he should have been acquitted on the count of forgery. We do not accept this submission.

The offence of forgery may be complete without any publication or uttering of the instrument, for the very making with a fraudulent intention and without lawful authority, of any instrument which, by statute is the subject of forgery is of itself a sufficient completion of the offence before publication.

Though the publication of the instrument in the medium by which the intent is usually made manifest, yet it may be proved plainly by other evidence.

It is a question for the jury under the circumstances of the case whether the instrument or document had been made innocently or with intention to defraud. See R v Crocker (1805) R & R97 2 Leach  987. There the note was in the prisoners possession and he never attempted to utter it. Le Blanc, J., held it was a question for the jury.

In this case on appeal before us, there is evidence that the Appellant wrote the cheque exhibit F5. He initialed it as genuine and good for payment and the cheque was found in his drawer. The cheque leaf was proved to be property of the Bank not sold to anyone.  The Appellant was the Accountant in charge at the Bank and the cheque was paid to his firm, the Nigeria Office Equipment Industries Limited.

The findings of the learned trial Judge that “There was evidence however that payment was in fact made on this cheque because it was so stamped. The initials of the Accused appear in red ink on the left hand side of the cheque signifying his authority to the cashier to pay………. The drawee of the cheque in question is Nigerian Office Equipment Industries Limited, which has been shown to be a Company in which the Appellant is the authorised signatory” completely settled the question.”
From the presumptions arising from drawing a cheque, it follows that any person who forges a cheque in whole be forging the signature on the cheque and stamping or writing an account number on the cheque must be taken to have made the three representations implied in drawing a cheque as stated above, all falsely.

We agree with the submission of learned Counsel for  the Appellant that the use of a false name only constituted forgery if identity was an immaterial factor and, or that the Appellant purported to be some specific other person real of fictitious.  But, is that not the case here The Appellant is known to all the Bank officials who testified, not as G. Ola Coker, but as Christopher A. Awobotu. His residential address differs from that stated of G. Ola Coker.  There is no evidence that in the books of the Bank, he held himself out to the Bank as the owner of the account of G. Ola Coker. There was no person known to the Bank as G. Ola Coker. He was, therefore, a fictitious person.

A person can be convicted for forging the name of a fictitious person. That was this Courts decision in the case of R v Domingo (1963) FSC286/1962 (unreported).  G. Ola Coker having been found to  be a fictitious person, the learned trial Judge was perfectly justified in holding that the cheque exhibit F5, bearing his name, is forged. The Appellant at no time held himself out as G. Ola Coker and no Bank official knew him to go by the false name of G. Ola Coker, as was the case of the Appellant in Kabua Bukie Odu v The State (1965) 1 All N.L.R. 25.
The intents to be proved under section 467(2) (g) of the Criminal Code are intent to defraud and intent to deceive.
In Welham v The Director of Public Prosecutions 1960 Cr App R125 approved in the Queen v Abuah (1961) 1 All N.L.R. by the Supreme Court, Lord Tucker in his judgment at p. 155 said of intent to defraud as follows:-
“Put shortly ‘with intent to defraud’ means with intent to practice fraud on someone or other. It need not be anyone in particular.  Someone in general will suffice. If anyone may be prejudiced in anyway by the fraud, that is enough.  At this point, it becomes possible to point the contrast in the statute between an intent to deceive and an intent to defraud.’To deceive’ here conveys the element of deceit, which induces a state of mind without the element of fraud which induces a cause of action or inaction.”
The intents have been sufficiently proved by the evidence led before the learned trial Judge.

Ground 3 therefore fails.
With regard to ground 4, we find ample justification for the learned trial Judges finding that the pretence laid in counts 5, 6, 11, 14 and 17, that the Appellant by falsely pretending that the owner of  the account No. 8010 with regard to the said National Bank of Nigeria, Yakubu Gowon Street Branch, Lagos, had authorised that the said sum of money stated in the cheques be paid from the said account  No. 8010, was the effective cause of the National Bank of Nigeria Limited with the amount of money stated in each count.

We have ourselves examined the cheques exhibits F, F1, F2, F3, F4 and F5 and find the  following appearing on the face and back of the cheques.

(a) Exhibit F dated 14th December 1972 for 750pounds was made payable to self or order and signed.  It had on it below the signature and to the left 8010 written in ink. There were the initials and date 14th December 1972 in green ink by the Appellant. It was signed at the back by the payee. On its face, it bore the cashier stamp and the paid stamp of No. 1 Cashier of the Bank at 55, Marina Street, Lagos with the date 14th December 1972.

(b)  Exhibit F1 dated 18th August 1972 for 4,000pounds was for cash or order and signed.  A/C 8010 was written in ink (biro) at the bottom of the signature. It bore Appellant initials in green and date the 18th August 1972.  It was signed at the back by payee. It bore the Cashiers stamp and paid stamp of Cashier No. 1 of the Bank at 55, Marina Street, Lagos and date 18th August 1972 at the back for 720pounds.

(c) Exhibit F1 dated 15th June 1971 for $720 was for each or order and signed. A/C 8010 was written in ink below and to the left of the signature. It bore the initials in green ink of the Appellant and date 15th June 1972 to the left bottom corner of the cheque. At the back it was signed by the payee. It bore at the back the Cashier stamp and the paid stamp of Cashier No. 1 of the Bank and date 15th June 1972.

(d)  Exhibit F3 for 500pounds dated 9th June 1972 was pay cash or order. It was signed and below to the left of the signature was written A/C 8010. It bore the initials of the Appellant and date 9th June 1972 in green ink. At the back it was signed by the payee. It bore the Cashier stamp and the stamp of Cashier No. 1 of the Bank and date 9th June 1972.

(e)Exhibit F4 for 3,050pounds dated 6th April 1972 was made payable to self or order. It was signed at the bottom by the drawer and below the signature and to the left was written A/C 8010. To the left of this are the initials of the Accused in green and date 6th April 1972. At the back the cheque bore the signature of the payee, the Cashier stamp and paid stamp of Cashier No. 1 of the Bank and date 6th April 1972.

(f)Exhibit F5 for $78,000 dated 25th August 1971 was made payable to Nigerian office Equipment Industries Limited, and signed. Below the signature is 90080 printed. To the left it bore Cashier contra stamp of the Bank and date 26th August 1971. At the bottom left corner it bore the initials of the Appellant in red and date 26th August 1971.  There was no signature at the back.

We therefore find that the false pretences laid were obvious from the fact that the amounts stated in the forged cheques Exhibits F, F1, – F4 were paid from that Account No. 8010 written below the signature of the drawer on the cheques.

The Appellant having been proved to have forged the cheques F, F1, F3 and F4 which are commands or instructions to the Bank to pay the amounts stated in them by the drawer to himself from Account No. 8010 and to have collected them, cannot escape the inference of those pretences arising from drawing of and presentation of a cheque for payment and collection of the payment. The writing of a cheque for payment of cash or to self necessarily implies that the writer is the owner of the account from which the cheque is to be paid. If it turns out that the signature on the cheque is not the owners, he has falsely represented himself to be the owner of the account stated therein.

We therefore see no reason to disagree with the findings of the learned trial Judge on this issue.

We agree with the submission of the learned Counsel that the pretence laid must be proved and must be proved to be the only irresistible in influence operating on the minds of the Bank and we adopt with approval the decisions of the Court of Appeal in R v Barker 5 Cr App R 285, R v Gail 30 Cr App R 81 and R v Sullivan 30 Cr App R 132, and we wish to refer on this point to the case of Ligali and Laja v The Queen 4FSC 7, where this Court cited with approval the case of R v Sullivan (Supra). Therein Ademola, C.J.F. (as he then was) delivering the judgement of the Court, went on at page 12 to say:

“In R v Sullivan (3), it was held that such proof need not in every case be afforded by the direct evidence of a witness to that effect, if the facts are such that the alleged false presence is the only reason which could be suggested as having been the operative inducement. As it was put by Humphreys J., delivering the judgement of the Court in Sullivans case (3) at page 136 –

“It is, we think, undoubtedly good law that the question of inducement acting upon the mind of the person who may be described as a prosecutor is not a matter which can only be proved by the direct evidence of the witness.  It can be, and very often is proved by the witness being asked questions which bring the answer: ‘I believed that statement and that is why I parted with my money’ but it is not necessary that there should be that questions and answer if the facts are such that it is patent that there was only one reason which anybody could suggest for the person alleged to have been defrauded  parting with his money and that is the false pretence, if it was a false pretence.
What other reasons in this case could have made Okupe part with his money but the combined effect of the statements made to him by the two Appellants in accordance with the original arrangements between the three men The statements in each case have been proved to be false. We are inclined to think that this is one of the cases in which the rule as stated by Humphreys J., should be applied.”
We may likewise ask in this case what reasons could have made the Bank to part with the various sums of money, but the command in the cheque from the owner of Account No. 8010, and Appellants instructions to Cashier No. 1, Lateef Agoro, P.W. 18 that the amounts were required by the customer or owner of Account No. 8010.

This ground of appeal is not made out and therefore fails.
We will now consider the arguments on ground 5. This ground was argued in the main along with ground 3.  It read as follows:-
“The learned trial Judge erred in law and on the facts in convicting the Appellant on counts 6, 7, 8, 9, 10, 12, 13, 14, 15, 16 and 18.

Particulars of Error
The offence alleged in the particulars offence of each count was that the Appellant forged and uttered (as the case may be) a cheque “purporting to have been signed by the owner of Account No. 8010 with the National Bank of Nigeria Limited, Yakubu Gowon Street Branch, Lagos.
None of the cheques alleged to have been forged purported to have been made by the owner of Account No. 8010 aforesaid.”
The learned trial Judges findings on the 11 counts enumerated in this ground of appeal are fully supported by the evidence adduced before him. The cheques, Exhibits F F1, F2, F3, and F4, the contents of which we have reproduced above, speak for themselves.
We therefore find no substance in this ground of appeal.
Ground 6 which is the omnibus ground – that the decision of the learned trial Judge is unreasonable and cannot be supported having regard to the evidence, was argued along with other grounds.

We may at the juncture refer to the fact that although the learned trial Judge arrived at his findings without adverting much to the confessional statements (Exhibits C, C1, C2, and C3) of the  Appellant, he concluded his judgement with them in this wise:
“I have earlier held these to be freely made and they do contain very much that support the evidence of the prosecution witnesses.”

We find the decision of the learned trial Judge amply supported by the evidence which in the absence of any evidence from the defence, stands uncontradicted.

This ground and the other grounds of appeal are not made out and we accordingly dismiss the appeal.

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Other Citation: (1976) LCN/2352(SC)